Donald Trump calls for people who burn American flag to be slung in jail or banned from US

President-elect took to Twitter to propose the penalty which flies in the face of the act being deemed free speech

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By Zoe Nauman, US Online Reporter

29th November 2016, 11:45 pm

Updated: 30th November 2016, 3:35 am

DONALD Trump has proposed people who burn the American flag should get jail time or lose their citizenship-despite the fact that the country's top court has ruled it legal.

Critics called the suggestion "fundamentally un-American", pointing out that as well as flag-burning being protected, revoking citizenship as punishment is not permissable.

The US Supreme Court has twice declared that flag-burning counts as 'expression', and is so protected under the first amendment to the country's constitution which guarantees that congress "shall make no law... abridging the freedom of speech."

Reuters

Donald Trump has called for people who burn the American flag to be slung in jail and banned from US

Trump tweeted: "Nobody should be allowed to burn the American flag -- if they do, there must be consequences -- perhaps loss of citizenship or year in jail!"

In 1989 and 1990 it was ruled the right to desecrate the flag was a form of free speech.

One case was Texas v. Johnson, when in 1989, the Supreme Court ruled 5-4 burning the flag was "symbolic speech."

That decision overturned Gregory Johnson's conviction by a Texas court for violating a state law that prohibited the "desecration of a venerated object".

One of the judges who voted to overturn that description was the recently-deceased Antonin Scalia, a judge whose interpretation of the US constitution Trump has repeatedly praised.

In the case of United states v. Eichman in 1990, it was again ruled a form of free speech, under the Flag Protection Act of 1989.

Twitter

The President-elect tweeted his plan on Tuesday

Barcroft Media

He could have made the announcement on the back of an American flag being burnt at a recent post-election protest

AP:Associated Press

However it is deemed an act of free speech under the First Ammendment

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And it is highly unlikely he would be able to boot people out of the country either

It is possible the tweet was sparked by a flag being burnt at a post-election protest in Massachusetts.

Hampshire College, where it happened, then decided to stop flying the flag.

Steve Vladeck, from the University of Texas Law School, said it was also highly unlikely someone could lose their citizenship for any offence.

He told CNN: "In addition to ignoring the Supreme Court's clear teaching that flag burning is constitutionally protected speech, Mr. Trump's tweet also casually suggests that citizens should lose their citizenship as a 'penalty' for such acts.

"Even if flag burning wasn't protected, it would still be unconstitutional to deprive someone of their citizenship without some voluntary act on their part to renounce their allegiance to the United States or pledge fealty to a foreign sovereign."

The American Civil Liberties Union described the suggestion as "staggeringly wrong from a constitutional point of view" and "not simply unconstitutional, but fundamentally un-American."

Trump has previously tweeted about the importance of free speech.

In 2013, he quoted George Washington and tweeted: "'If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter.' - George Washington."

Trump's spokesman defended his boss's position, saying "the President-elect is a very strong supporter of the First Amendment, but there's a big difference between that and burning the American flag."

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